AMARJEET SINGH Vs. BHAGWATI DEVI

JUDGEMENT

(1.) This first appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') is directed against the judgment and decree of the Additional District Judge dated 7th April, 1979 dismissing the petition of the appellant-husband for dissolution of his marriage by a decree of divorce under Section 13(1), (i)(ia)(ib) of the Act. Briefly, the facts are that the: marriage between the parties was solemnised according to the Hindu rites on 21st June, 1961 at village Bharthal, Delhi. The parties after marriage resided at village Rewari, Khera (District Rohtak), Haryana and lived together for a period of about ten years. The parties have one son, one daughter and another child born on 1st May, 1975. One more child born from marriage had died after birth. The appellant-husband used to reside in the village without any source of income. In August, 1968 he got an employment as a Constable in the Delhi Police. The husband shifted to Delhi. The respondent-wife, it is alleged, refused to live with the parents of the appellant in the village and she went to her father's house. The wife filed the petition for maintenance under Section 488 of the Code of Criminal Procedure in Feb., 1973 while the husband filed a petition for judicial separation on the ground of cruelty under Section 10 of the Act in March, 1973. Both these proceedings were, however, compromised on 16th May 1973. The husband withdrew his petition for judicial separation and the wife withdrew her application for maintenance. The husband, however, in the compromise petition for maintenance admitted that the wife never treated him with cruelty. According to the husband, the wife deserted him in June, 1973 while according to the wife she was given beatings by her husband on 12/13th February 1974 and at about 12.30 O'clock at night, she was thrown by him on the main road of village Bharthal and since then she has been living with her father. The wife lodged a report with the police station, Najafgarh Road, on 12th/13lh' February, 1974. The husband has alleged that the wife has been cruel to him, that she deserted him in June, 1973, that she had voluntary sexual inter course with any person other than him and that she gave birth to a child on 1st May, 1974. The wife on the other hand denies the allegations of the husband and asserts that the last son was the result of cohabitation between the appellant and the respondent. She denies that she ever deserted him or treated him with cruelty. The trial court dismissed the divorce petition on all the grounds.

(2.) Learned counsel for the appellant submits that the respondent-wife had voluntary sexualinter course with any person other than the appellant and she gave birth to a child on 1st May, 1974. He submits that in June, 1973 the wife had separated and deserted the husband and there was no occasion for any cohabitation between the two and therefore the child born on 1st May, 1974 was on account of voluntary sexual intercourse by the wife with a third person. His next submission is that the respondent deserted the appellant for a continuous period of more than two years preceding the presentation of the divorce petition. He submits that the respondent deserted the appellant in June, 1973 while the present petition for divorce was filed on 25th August, 1977. He submits that the desertion by the wife was without his consent and without any cause on his part. Lastly, he submits that the respondent treated the appellant with cruelty. His case is that in August, 1972, the wife made a false report against him to the police, that she made an application on 9th February, 1974 before the Surpanch and that she sworn an affidavit before a Magistrate on 11th February, 1974 to the effect that she had obtained divorce from the appellant that she could not live with him, that they were not husband and wife and that she had no claim against him. He further says that on 13th February, 1974 the respondent-wife again made a false report to the police against him. The husband had made an allegation of adultery against the wife in the petition for divorce and the wife in the written statement alleged that the husband was most spendthrift, debauch and a depraved type of criminal, that he promiscuously indulged in drinks and prostitution and was found making obscene overtures towards innocent girls of the street. On these allegations contained in the written statement the learned counsel for the appellant submits that the ground of cruelty stands proved against the respondent-wife. Counsel for the parties have read the entire evidence before me. The appellant has appeared as Public Witness 2. But after reading the entire evidence, I find that he has failed to prove any ground of divorce against the respondent- wife. He has not deposed any fact or circumstance about the alleged sexual intercourse by her with any third person. He was not deposed that son born on 1st May, 1974 was not from him. He has also not deposed any fact constituting the ground of desertion. He has only deposed that the wife left him in June, 1973. As regards cruelty also, besides general allegations, nothing has been deposed by him. The respondent wife on the other hand has deposed that she never deserted him, that on 11th February, 1974 she was taken to Rohtak where the appellant and his mother obtained her thumb-impression at various blank papers after giving her a beating, that she never misbehaved with him, that she never put her thumb-impression on any application before the Surpanch or any affidavit before the Magistrate. She has specifically stated that the child born on 1st May, 1974 was on account of her cohabitation with the appellant. Hukam Chand, father of the respondent also appeared as a witness and supported the respondent-wife. Public Witness 1 Sant Ram Taneja, Advocate who is an attesting witness of the affidavit dated 11th February, 1974 has deposed that he identified the respondent before the Magistrate but in cross-examination he admitted that he did not know the respondent-wife earlier. Umed Singh appeared as Public Witness 3 and has deposed that the respondent wrote an application Ext. Public Witness 3 to the Surpanch and that he directed her to seek divorce from the court.

(3.) A single act of voluntary sexual intercourse by wife with any person other than her spouse is a ground for a decree of divorce under Section 13(1) (i) of the Act as amended by Act 68 of 1976. In the present case the allegation of the appellant-husband is that the wife has been living separate from him since June, 1973 and she gave birth to a child on 1st May, 1974 and therefore it must be held that the wife had voluntary sexual intercourse with a third person. The appellant in his petition for divorce has not given any particulars of the alleged act of adultery. He has not impleaded as a party the alleged adulterer. The Hindu Marriage (Punjab) Rules, 1956 framed under Sec. 21 of the Hindu Marriage Act, 1955 are applicable to instant divorce petition. Rule 4 of the said Rules requires that all petitions of divorce shall state the matrimonial offences charged setting separate paragraphs with the times and places of their alleged commission. Rule 6 requires to give particulars of the acts of adultery alleged to have been committed by the respondent and Rule 10 of the said Rules further requires that adulterer be impleaded as a party. On certain grounds the petitioner may with the permission of the court be excused from impleading the adulterer. The appellant-husband never sought any permission for not impleading the alleged adulterer. On the allegations contained in the divorce petition I find that the alleged act of adultery has not been properly pleaded. Moreover there is no evidence on record in support of the alleged allegation. Sec. 112 of the Indian Evidence Act provides that the birth of a child during the marriage is conclusive proof of legitimacy unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been together. There is no evidence on behalf of the appellant that they had no access to each other. On the other hand, the respondent-wife has deposed that she cohabited with the appellant as a result of which she gave birth to a child on 1st May, 1974. In Emmanuel S. Peters v. Alice Peters 1976 Raj L. Reporter (note), 28, it has been observed that if a divorce petition on the ground of adultery does not contain time and place of the commission of adultery, it must fail. Rule 4 (VII) of the Hindu Marriage (Punjab) Rules requires the petitioner to mention the time and place of the alleged matrimonial offence. Nothing has been proved by the husband and therefore the ground of adultery fails.